Indianapolis Nat. Gas Co. v. Kibby

• Decision Date: 24 November 1893
• Citation: 35 N.E. 392,135 Ind. 357
• Parties: INDIANAPOLIS NAT. GAS CO. v. KIBBY.
• Court: Indiana Supreme Court

135 Ind. 357

35 N.E. 392

INDIANAPOLIS NAT. GAS CO.

v.KIBBY.

Supreme Court of Indiana.

Nov. 24, 1893.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Action by John F. Kibby, trustee, against the Indianapolis Natural Gas Company for an injunction. From a judgment for plaintiff, defendant appeals. Affirmed.

Kane & Davis, for appellant. John F. Kibby, in pro. per.

HOWARD, J.

This was a suit brought by the appellee for injunction. A demurrer to the complaint was overruled, and, the appellant declining to plead further, judgment was rendered in favor of the appellee, enjoining the appellant from drilling a gas well in the premises described in the complaint. The appellee, as assignee, claimed title to the gas lands in question under the following contract: “This agreement, made and entered into this 26th day of September, 1889, by and between Mary E. Neese and W. S. Neese, of the first part, and O. F. Deal, of the second part, witnesseth that the parties of the first part have this day granted and contracted to the second party, his heirs and assigns, one tract of land twenty feet square of the following real estate, [describing it,] containing eighty acres more or less, * * * for the purpose and exclusive right of a gas well on said twenty-foot square tract. Said second party, his heirs or assigns, shall have the right of ingress and egress to and from the twenty-foot square tract of land over said entire tract for the purpose of drilling, utilizing, and operating said gas well, and piping and conducting gas therefrom, including the erecting of suitable sheds over said well, and the right to erect and remove any and all machinery and fixtures necessary to the drilling, repairing, and operating said well, and the right to put down water wells, and use sufficient water for said purposes. Said second party, his heirs and assigns, shall also have the right to the use of the highways adjoining any part of said entire premises for the laying of mains for the transportation of gas and oil. All pipes that are placed on said premises in reaching said highways shall be of sufficient depth not to interfere with the cultivation of the soil, when it can be so done. Said second party agrees to pay to said first party all damages that may accrue to them in the way of injury to buildings, fences, or crops occasioned by work under this contract. In consideration of said contract and other conditions, said second party agrees to deliver to said first party, his heirs or assigns, natural gas, free of charge, necessary for domestic use for dwelling houses and farm use on said premises on or before the first day of February, 1890, in a gas main along the public highway in front of said buildings. And, as an additional consideration,the second party agrees to pay to said first party an annual rental of fifty dollars each year for each gas well drilled as aforesaid which produces gas in paying quantities sufficient for manufacturing purposes. Said payments shall commence after the completion of each gas well, and continue annually during the continuance of this contract, and shall be placed at the C. Quick & Co. Bank, of Frankton, Indiana. This contract shall be deemed to commence at and run from the date of the signing thereof, and shall be deemed to have terminated whenever natural gas ceases to be used generally for manufacturing purposes, or whenever the second party, his heirs or assigns, shall fail to pay or tender the rental price herein agreed upon within sixty days of the date of its becoming due. And in the event of the termination thereof for any cause, all rights and liabilities thereunder shall cease and terminate. Now, as a part of said contract, and in further consideration thereof, the parties of the first part covenant and agree, and hereby bind themselves, their heirs, executors, and assigns, not to drill or suffer or permit others to drill or put...